FC410037RO; FB410306RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
-----------------------------------X S.J.R. 6780
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: FC410037RO;
FB410306RT
KALIKOW 78/79
AND
PAUL SAVAGE DRO DOCKET NO.: ZBL410346R
PETITIONERS TENANT: PAUL SAVAGE
-----------------------------------X
ORDER AND OPINION GRANTING OWNER'S PETITION
FOR
ADMINISTRATIVE REVIEW
AND
DENYING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
On March 5, 1991 the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on January 30, 1991 by the
Rent Administrator, 92-31 Union Hall Street Jamaica, New York,
concerning the housing accommodations known as 523 East 78th Street, New
York, New York, Apartment No. 2H, wherein the Rent Administrator
determined that due to the owner's failure to file an annual
registration for 1986, the rent was frozen as of April 1, 1986 and the
owner had collected an overcharge from the tenant.
On February 19, 1991, the petitioner-tenant filed a petition for
Administrative Review against the aforementioned order. These petitions
are being consolidated for disposition herein.
Subsequent thereto, the petitioner-tenant filed a petition in the
Supreme Court pursuant to Article 78 for the Civil Practice Law and
Rules requesting that the "deemed denial" of both petitioners'
Administrative appeals be annulled. This proceeding was then remitted
to the Agency for a determination of the petitioners' appeals.
The Administrative Appeals are being determined pursuant to the
provisions of Section 2528 of the Rent Stabilization Code (hereafter
RSC) and 26-513 of the Rent Stabilization Law (hereafter RSL).
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
FC410037RO; FB410306RT
raised by the administrative appeals.
This proceeding was originally commenced in December 1987 by the filing
of a rent overcharged complaint by the tenant in occupancy since October
31, 1983 wherein the tenant contends that his initial rent of $600.00
was too high as the rent on March 31, 1980 was under $200.00. In such
complaint, in answer to the question "Did the owner provide you with a
copy of the Apartment Registration Form (Form RR-1) for your
apartment?", the tenant responded yes but stated he did not know when
since he received at least two.
In response to the tenant's complaint, the owner stated in substance
that the tenant was the second rent stabilized tenant; that prior to
October 16, 1983 the apartment was rent-controlled and submitted a copy
of a notice of Initial Legal Regulated Rent (hereafter DC-2) with proof
of certified mail service on the prior tenant date stamped October 28,
1983; and a copy of a certificate of mailing by the Rent Stabilization
Association (hereafter RSA) with an apartment registration list
indicating that a copy of the Initial Apartment Registration (hereafter
RR1) was served on the tenant herein on June 29, 1984.
In order number ZBL410346R, the Rent Administrator established the
initial legal registered rent at $600.00, the rent charged by the owner
on April 1, 1984, but froze the rent at $673.11 effective April 1, 1986
due to the owner's failure to file an annual registration for 1986, and
directed a refund to the tenant of an overcharge of $4,422.34, including
treble damages.
In its petition, the owner contends in substance that there is no rent
overcharge in that it has always been in complete compliance with
registration requirements and had hand-delivered the 1986 registrations
for the subject building directly to the Gertz Plaza Office of the
Division of Housing and Community Renewal (DHCR); that a manual search
for the original hard copy of the registration should be undertaken and
that a possible mix-up may have occurred because the subject premises is
one building in a multi-building complex. A copy of an affidavit
attesting to the delivery by had of the 1986 registration forms signed
by the leasing and accounts receivable manager for the owner, which had
been submitted below, was resubmitted with the petition.
In answer to the owner's petition, and in his own petition, the tenant
contends in substance that the Rent Administrator did not give adequate
consideration to the tenant's fair market rent appeal (hereafter FRMA);
that the DC-2 notice was allegedly served on the prior tenant only 3
days before the complainant took occupancy on October 31, 1983 and no
copy of the DC-2 was re-served on him although the 90 day period had not
expired; that the prior tenant was in occupancy only about 2 weeks and
transferred the lease to the complainant; that no copy of the DC-2 was
with the prior tenant's transferred papers; that the prior tenant had
disavowed receipt of such a form and further the complainant was never
served a copy of the RR1 or any registrations prior to 1987; that prior
to the owner's dispute with the Landmark's Commissioner, it had failed
FC410037RO; FB410306RT
to comply with registration requirements for any of the buildings in the
complex; that the apartment list accompanying the RSA mailing was marked
"amended"; that although the complainant was in occupancy on April 1,
1984, the registration on file with the agency does not list the
complainant's name but leaves that information blank; and that although
the tenant had responded to the Rent Administrator's treble damage
notice in December 1990 requesting updating of the overcharge, the order
only calculated the overcharge through October 31, 1988.
With his petition, the tenant submitted an affidavit attesting to
receipt of only annual registration forms for 1987 and 1988 and
disavowing the receipt of the RR1 on June 29, 1984 as shown in the RSA
mailing documents.
The Commissioner is of the opinion that the owner's petition should be
granted and that the tenant's petition should be denied.
Sections 2528.2 and 2528.3 of the Rent Stabilization Code (hereafter
RSC) outline the owner's obligations under the Omnibus Housing Act to
register subject housing accommodations with DHCR.
Section 2528.1 of the Rent Stabilization Code requires that the owner
file an Initial Apartment Registration Form (RR1) indicating the rent in
effect on April 1, 1984 with the Agency and serve a copy of such form on
the rent stabilized tenant in occupancy on April 1, 1984.
Section 2526.2(a)(ii) states in pertinent part that any complaint based
upon overcharges occurring prior to the date of filing of the initial
rent registration . . . shall be filed within ninety days of the mailing
of the notice to the tenant of such registration.
The Regulations do not provide for any extension of this 90 day period.
Section 2528.2(d) of the Rent Stabilization Code provides in pertinent
part that a copy of the RR1 form served prior to May 1, 1987 may be by
". . . any method of service permitted by the Division of Housing and
Community Renewal (DHCR) at the time of service. . ."
In the instant case, the owner submitted proof of service showing that
a copy of the RR1 notice was served on the tenant by one of 3 methods
permitted by DHCR prior to May 1, 1987, specifically, bulk mailing by
the RSA, as established by the RSA affidavit of service, USPS mailing
permit date-stamped on June 29, 1984 and an apartment registration list
which indicated the complainant as one of the addressees of the June 29,
1984 mailing.
The tenant's complaint filed on December 27, 1987 is in excess of 90
days from service of the RR1 on June 29, 1984 and therefore cannot be
considered as a timely fair market rent appeal. Accordingly, the
initial legal registered rent of $600.00 per month effective April 1,
1984 was correctly utilized in the Rent Administrator's order.
FC410037RO; FB410306RT
Although the tenant disputes receipt of the RR1 form, the documents
submitted by the owner clearly show that the tenant was the party to
whom the RSA mailed copies of the RR1 form on June 29, 1984. The tenant
has failed to indicate any document other than the RR1 that may have
been mailed by the RSA on June 29, 1984 nor any reason why the RSA would
mail other than the RR1 form so stated in their affidavit. Moreover,
the tenant does not dispute the fact that he was the tenant in occupancy
of the subject apartment on June 29, 1984 and in his original complaint
the tenant acknowledged receiving the RR1 form although he did not say
when he received it.
With regard to the tenant's ancillary contentions concerning service of
the DC-2 notice on the prior tenant in October 1983, the Commissioner
notes that the subsequent proper service of the RR1 form is sufficient
to cure any alleged defects in the earlier serving of the DC-2 notice.
With regard to the owner's petition, Section 2528.4(b) of the RSC
provides, in pertinent part, that the penalty for failure to annually
register an apartment will be that the owner will be barred from
collecting any rent in excess of the legal regulated rent in effect on
April first of the year for which an annual registration was required to
be filed. . . and that the late filing of the registration shall result
in the elimination prospectively of such penalty.
An examination of the record in this case discloses that the owner is
correct in its contention that the subject apartment and building were
registered in 1986.
During the pendency of the appeal, DHCR undertook a search of the
Division's actual copies of the 1986 registrations on file with the
Division offices in Albany which verified that copies of the 1986
registration forms for the subject building (including the subject
apartment) were received by DHCR on October 30, 1986 with the 1986
Registration forms for the adjacent building (519 East 78th Street mdr
120972). Further, the search disclosed that the 1984 initial
registrations for the subject building were received on December 8,
1984.
Accordingly, the Rent Administrator's freezing of the rent effective
April 1, 1986, with the imposition of treble damages, was not warranted.
An examination for the rent record and the removal of the penalties for
failing to register reveal that no rent overcharge in fact occurred.
The tenant's contention that the 1984 registration does not list him as
the tenant in occupancy is not a correct statement of fact, as a review
of the DHCR registration records does indicate "P. Savage" as the tenant
in occupancy on April 1, 1984.
Finally, the tenant's request for an updating of the overcharge
calculation is rejected since in fact no rent overcharge occurred.
FC410037RO; FB410306RT
If the owner has already complied with the Rent Administrator's order
and there are arrears due to the owner as a result of the instant
determination, the tenant is permitted to pay off the arrears in 24
equal monthly installments. Should the tenant vacate after the issuance
of this order or have already vacated, said arrears shall be payable
immediately.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that the owner's petition be, and the same hereby is, granted,
that the tenant's petition be, and the same hereby is, denied, that the
order of the Rent Administrator be, and the same hereby is, revoked, and
it is found that no rent overcharge occurred.
ISSUED:
--------------------------------
JOSEPH A. D'AGOSTA
Deputy Commissioner